Working Paper No. 14-19:
From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law

Author(s):

Abstract:

This
article focuses on the role Justice Louis Brandeis played as a transitional
figure in writing opinions that served as a bridge between the statist
Progressives of the early twentieth century and mid-century legal liberals.

Brandeis
was known as a civil libertarian in his day because he supported freedom of
speech and labor union rights, which were the rights that the nascent
left-leaning civil libertarian movement held most dear. But Brandeis was far
from a consistent civil libertarian as the term has been understood since at
least the Warren Court period. Nevertheless, Brandeis was responsible for
guiding the Progressive wing of the Court away from the more consistently
statist, deferential-to-democratic-majorities path charted by Justice Holmes to
an agenda more accommodating to libertarian and equalitarian concerns.

Part
I of this Article discusses Brandeis’s many deviations from civil libertarianism
as it came to be understood in the post–New Deal period. These deviations
include his acquiescence to coercive eugenics, his general lack of interest in
African American rights, his support for protective labor legislation for women
and concomitant disregard for women’s legal equality, his toleration of
government abuses attendant to Prohibition enforcement, and his desire to
repeal the Fourteenth Amendment.

Part
II shows that despite these deviations, Brandeis had a significantly stronger
record on civil liberties as a Supreme Court Justice than one would expect from
someone of his Progressive outlook and background. Brandeis’s votes in favor of
civil liberties created a civil libertarian corpus from the Progressive wing of
the Supreme Court. This prevented judicial protection of what became core civil
libertarian concerns from being associated primarily with the
soon-to-be-discredited “Lochner Court,” and made it much easier doctrinally for
later generations of liberal Justices to abandon early twentieth-century
Progressivism’s blanket hostility to judicial review in favor of a
jurisprudence favoring civil rights and civil liberties.